We assume without deciding that, had petitioner's counsel exercised
reasonable professional skill and judgment, he would have asked the trial court to conduct
a competency hearing for SB and the trial court would have concluded that SB was not
competent to testify. We therefore consider only whether petitioner established that he
was prejudiced by his counsel's failure to request a competency hearing. Our resolution
of that issue requires us to consider all of the evidence presented at petitioner's criminal
trial to determine if the admission of SB's testimony prejudiced petitioner. Harris v.
Morrow, 186 Or App 29, 38, 63 P3d 581, rev den, 335 Or 479 (2003).

It was uncontested in the criminal trial that petitioner had touched SB's
vagina, once briefly and once for a period ranging from 30 seconds to five minutes in
length, and that he had rubbed her vagina at least five to ten times during the second
episode.

SB testified at trial that petitioner had touched her vagina twice and
described details of the two episodes, including how petitioner had touched her. She said
that petitioner did not say much during the two events but that he did tell her to go to
sleep, to go to bed, and asked whether she needed to go to the bathroom. SB's mother
testified that petitioner had told her that he had twice put his hands down SB's pants and
touched SB on "her clit. Her private area." She also testified that petitioner had told her
that he did so in an effort to teach SB "how to protect herself" from sexual abuse.

Another witness, Officer Enz, testified about an interview that he had
conducted with petitioner. Enz testified that petitioner had said that "[SB] was always
curious about sex and that he had created a no touching rule. And that she did not even
sit on his lap." Petitioner explained that he had caught SB masturbating several times;
that after seeing SB masturbate he had had subconscious sexual intentions towards SB;
and that he had touched SB "[t]o show her what could happen if someone started and did
not stop." Petitioner also described how he had touched SB and said that he touched her
under her clothes. In response to Enz's question about whether petitioner had rubbed SB's
vagina in a sexual way, petitioner said, "Right." Petitioner also said that he had felt SB's
pubic hair, that his heart rate and breathing rate were elevated when he touched SB, and
that he was physically stimulated at the time. Petitioner denied, however, that he was
sexually stimulated and denied having an erection. Enz also testified that petitioner said:

"It's not right. I know it's not right. Several times I could have had
sex with [SB] but I always said no. I care for [SB and her mom]. I always
wanted a father image. She wanted a boyfriend. That's why there was a no
touching rule. I care for [SB] as a father, not a boyfriend.

"You don't know how many 12 year old girls have hit on me. I
mean, you get some 13 year old girls with halter tops and shorts up the
crack of their ass. It's hard. Real hard."

Williamson, a social worker, testified that petitioner had told her that

"in the midst of trying to discuss with [SB] where and what her private parts
were that he did touch her. And I asked 'Where did you touch her?' And he
said, 'above her hair line.'"

Williamson stated that petitioner had denied having done so for sexual reasons. Dr. Carr
also testified that she had examined SB and that, during the course of the examination, SB
had told her that "[petitioner] touched my vagina."

Petitioner testified at trial that he had touched SB. He said he had done so
because SB had a chronic problem with inappropriate touching and he had decided to do
something about it. He wanted "[t]o explain to her about what she was doing in the
bathroom, the touching of herself. To explain to her that if she did that in front of people
that if she let the people touch her that she could get hurt." He stated that, during the
second, longer incident, he touched her and said, "Is this what it [felt like] when you
[were] in the bathroom? Is this what you really want? If you keep up these activities and
you let somebody touch you here, you are going to get hurt. You are going to get raped."
Petitioner testified that he was motivated to touch SB because he "wanted to make a point
to [SB and SB's mother] that [SB] needs to be able to distinguish and say no. And also to
wake [SB's mother] up. She needs to know that this is seriously something that she needs
to deal with."

Petitioner contended at his criminal trial that he had not committed the
crime of sexual abuse in the first degree when he touched SB because he had not touched
her for purposes of sexual gratification or arousal. As that argument suggests, an element
of the crime of first-degree sexual abuse is the "touching of the sexual or other intimate
parts of a person * * * for the purpose of arousing or gratifying the sexual desire of either
party." ORS 163.305(6); ORS 163.427(1)(a). On appeal and before the post-conviction
court, petitioner argues that he was prejudiced by his counsel's failure to challenge SB's
competency because the jury likely believed SB's testimony that petitioner had not said
much to her when he touched her and therefore disbelieved petitioner's testimony that he
had told her that he was touching her because he was concerned with her welfare and
wanted to help her avoid sexual abuse in the future.

1. The state concedes that petitioner is entitled to a delayed appeal of his convictions
if he is not otherwise entitled to a new trial as a consequence of having received constitutionally
deficient representation at his criminal trial.